from the not-an-easy-balance dept

We've written a few times about domain registrar/hosting company EasyDNS, which has been pretty vocal about how law enforcement and industry groups have recently started targeting registrars and hosting comapnies as "the soft underbelly" for censorship and coercive control. While we've covered this issue frequently as it relates to things like copyright, the real ground zero for this may be around online pharmacies. The online pharmacy space is a bit complicated -- because there are really a few different kinds. There are US-based accredited/approved pharmacies, there are overseas accredited/approved online pharmacies... and then there are flat-out rogue pharmacies dealing in illegally obtained or counterfeit medicines. Obviously the last one is in a different category altogether from the first two, but US drug companies like to conflate legal foreign online pharmacies with the rogue ones.

For years, there have been fights over the issue of "gray market" and "re-imported" drugs. The most common case involves Canadian pharmacies, which are perfectly legitimate, selling into the US, but at prices much cheaper than the drug companies would like (undercutting the prices charged by American pharmacies). Fake and dangerous drugs from rogue pharmacies are a real (if relatively small) problem. Legitimate foreign pharmacies selling into the US at cheaper prices are a made up problem by US drug companies. But those US drug companies like to take the "small" problem, and blame it on any non-US pharmacy in an attempt to block out the competition. This has been going on for years, but has ramped up recently.

We've written about how the big drug companies recently got control over the .pharmacy domain, and the indications are that they're planning to use it to block out legitimate foreign pharmacies by arguing that only online pharmacies with a .pharmacy domain are "legit" and then banning legitimate foreign pharmacies from getting the domain. Earlier this year, we also wrote about the lobbying group, the National Association of Boards of Pharmacy, telling registrars that if they complain about a site, it must be taken down.

Mixed in with all of this is the somewhat questionable setup of an operation called "LegitScript," which is an organization that claims to verify which pharmacies are legit. The history of "LegitScript" is extremely sketchy, involving a former White House official who specifically worked to block legitimate Canadian pharmacies from sending drugs to the US, and who then immediately went off to form LegitScript as a competitor to PharmacyChecker -- a similar service that verifies online pharmacies including Canadian pharmacies. Oh, and the "immediately" in the last sentence may be inaccurate as the guy, John Horton, appears to have registered the domain for LegitScript while he was still a federal government employee... Either way, the US pharma industry has worked hard to make LegitScript the standard while pushing back on PharmacyChecker.

Back to EasyDNS: the company has been fighting off these demands to shut down sites repeatedly, saying that it will only do so with a court order. After getting into a fight with the US's Food and Drug Administration (FDA) over demands to take down a bunch of domains, EasyDNS finally agreed to take down a site, after being provided with evidence that it was truly a rogue pharmacy, and someone had died from taking drugs ordered from that site. Because of this EasyDNS has adjusted its policy, saying that if you are selling drugs, you have to prove to EasyDNS that you have a license to do so, or be approved by either LegitScript or PharmacyChecker (meaning that it will allow legitimate foreign pharmacies to exist). EasyDNS is still standing up to bogus requests (including new ones from the City of London Police) to take down websites, but is being more proactive when an online pharmacy has no signs of being legitimate.

While some people complained about EasyDNS's new policy, the company's CEO Mark Jeftovic explained it as follows (after referencing the latest copyright takedown demand from the City of London Police):

So in one case we have people allegedly pirating Honey Boo Boo reruns and on the other we have people dying. We don't know where exactly, but the line goes somewhere in between there.

We have always done summary takedowns on net abuse issues, spam, botnets, malware etc. It seems reasonable that a threat to public health or safety that has been credibly vetted fits in the same bucket.

As a private company we feel within our rights to set limits and boundaries on what kinds of business risk we are willing to take on and under what circumstances. Would we tell the US State Department to go to hell if they wanted us to take down ZeroHedge? Absolutely. Do we want to risk criminally indicted by the FDA because of unregulated drug imports? Not so much.

He also notes, as we did, how Fedex was recently indicted over deliveries from questionable online pharmacies, and notes that it's only a matter of time until criminal charges are filed against a registrar or hosting company as well.

These are not easy decisions for anyone -- though, I have to imagine that truly "rogue" pharmacies are increasingly moving to the darknet and underground markets anyway. However, while some may disagree, there does seem to be a reasonable argument for why a registrar like EasyDNS decides it really doesn't want to be involved with clearly rogue pharmacies.

Seems like a sensible way to decide, any 'pharmacy' that's offering harmful fakes and knock-offs, rather than legitimate, if cheap generics and brand-name stuff, poses a threat to health and safety, and deserves to be de-listed/blocked.

If the only problem however is the US pharmacies/companies whining how 'they are selling the same drugs we are, at a fraction of the cost, undercutting our price-gouging!' though, the site deserves to stay up.

Now, if the FDA or another agency(not the pharma industry) wants to write up an evidence based list covering the ones from the first category, and present it to registrars, I imagine that would be a big help dealing with the the health issue, though nothing short of the competing foreign pharmacies being forbidden to sell to the US will likely shut the US pharma companies up I'd imagine.

Re:

Agreed. Piracy is a whole different beast altogether, specially if it involves only digital stuff. I recently downloaded a load of e-books from the internet for books I already own they came from various sites including TPB, Kickass and others well known. Are they in the wrong for offering this possibility? Or the real question of why I can't download such books officially/legally? I've also downloaded plenty of free, indie content along with software (Linux stuff, games) that are free to play.

Help, foreign pharmacies are undercutting our business by selling our drugs at lower prices to America!

Are the drugs foreign made? No we sold it to them and now they're reselling it!

Why do we charge US customers so much more that it actually saves US citizens money to buy from Canadian pharmacies instead of US pharmacies? Because we're evil greedy bastards and the US healthcare system sucks at getting lower prescription drug prices, which totally rocks for our profits!

You can't allow an efficient healthcare system to undercut our profits in a nation with an inefficient healthcare system! The consequences could be dire! We might not be able to afford a solid gold toilet seat on our yachts come next spring!

Just love how the idiots try to throw around the word 'indict' like it's a guilty verdict. I don't see the Fedex indictment turning into a guilty verdict because Fedex didn't engage in criminal activities, it was the online business conducting illegal activity.

It's like holding USPS liable or holding the mail carrier liable for a package from an illegal business.

I'm sure there'll be more bending over backwards in an attempt to either portray this as a 'proof' that easyDNS isn't as customer-friendly as people think, or that since they decided to terminate a rogue pharmacy site there's no reason they can't exercise the same judgement on 'pirate' sites.

Of course, court order or no court order, here we have the US FDA providing evidence that someone actually died. There can be legitimate concerns raised about the validity of the FDA, but at least it's a government agency tasked with this kind of thing.

If the comparison we have is the City of London Police's extra-judicial, based-on-Hollywood's-say-so requests, or those from the ICE -- which does not stand for Immigration and Copyright Enforcement -- then I'd say there's a reasonable line to draw in between.

Now I just hope that easyDNS and other such companies actually standing up for their customers won't get bankrupt weathering all the complaints and lawsuits.

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Are directory inquiries required to refuse to give out phone numbers, or phone books required to delist numbers, on accusation of some crime by the owner of the number? If not, why are are domain registrars and DNS services required to do so for Internet names to IP mappings?

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If the only problem however is the US pharmacies/companies whining how 'they are selling the same drugs we are, at a fraction of the cost, undercutting our price-gouging!' though, the site deserves to stay up.

Why don't those US pharmacies/companies who are whining just get a new law passed called DRM (Drug Rights Management) and put in a region lock on medication so the drugs won't work unless your body is in the country of purchase?

Not so easy

It's not so easy for EasyDNS here. While black market or counterfeit drugs are not the biggest part of the marketplace, in terms of number of websites, it's a very big deal. Your typical pill spammer / scammer will go through hundreds of domains a year pushing their stuff. EasyDNS is one of those places very likely to see a big percentage of it as well.

They suffer the same problem that most companies do with this. Their intention is to offer a good service and make it "easy", but in doing so they also make it easy for scammers to slide in and take advantage. The scammers always seem to want to hide with the innocent and decent people, to make it harder to whack that mole.

Re: Not so easy

Their intention is to offer a good service and make it "easy", but in doing so they also make it easy for scammers to slide in and take advantage.

How is that any different from the phone companies, and mail companies making easy for scammers to sell stock, or tout for business, like work not needed on a house?Just because it is over the Internet does not mean innocent third parties should become police; or worse, the enforcers of the business models of drug and entertainment companies.

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Thought I should point out that most "Canadian Pharmacies" operate out of Russia, and while /some/ of the drugs might be legit, much of the supply is coming through third world aid conduits (governments selling the drugs they bought from the US for profit) and not from the discounted bulk purchasing agreements countries like Canada have.

That's most though; there are a few places in Canada that sell stuff, but most of that is not branded drugs; more the naturopathic kind. Both the FDA and Canada's equivalent crack down pretty hard on drugs imported with the aid of the Canadian government being re-sold out of country.

Police?

Section 230

He also notes, as we did, how Fedex was recently indicted over deliveries from questionable online pharmacies, and notes that it's only a matter of time until criminal charges are filed against a registrar or hosting company as well.

Uhh ... wouldn't a registrar or hosting company be protected by the Section 230 safe harbor here? After all, they're just an online service provider, and unlike FedEx would never physically handle any drugs.

(Not that FedEx should be liable for what its users choose to ship, either, mind you.)

Re: Section 230

Uhh ... wouldn't a registrar or hosting company be protected by the Section 230 safe harbor here? After all, they're just an online service provider, and unlike FedEx would never physically handle any drugs.

Re: Re: Section 230

Doesn't blocking imports from legitimate foreign pharmacies go against the principles of "free trade"? Why are we still permitting such protectionism measures in this modern day and age.

I knew all these corporations pushing "free trade" were full of shit. Free trade is only for corporations, not citizens. Corporations are perfectly fine with blocking free trade if it allows them to inflate prices in certain regions.

Re: Re: Not so easy

The difference is that EasyDNS has the right to refuse service to anyone, and isn't bound by the same rules as phone companies in this regard. DNS and other service providers are just not in the same legally protected position as the phone company.

Re: Re: Section 230

But again, the registrars aren't handling any drugs. They're handling speech, and even then mostly not directly. How exactly could they run afoul of federal criminal laws? If they can, then those laws require serious reform.

Kudos to easyDNS

Recent FDA and National Association of Boards of Pharmacy actions have muddied the distinction between rogue and legit, licensed international online pharmacies. It’s unfortunate that private companies like easyDNS wind up in the middle of this mess. But we were pleased to see they modified their policy in favor of the millions of American consumers who depend on legitimate international online pharmacies to access meds they can afford. It was a gutsy move on their part.

Re: Kudos to easyDNS

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So let me get this straight. EasyDNS waits until someone actually dies before they change their takedown policy and their heroes? Maybe if they'd acted responsibly in the first place they wouldn't have blood on their hands. Leave it to industry shills like Techdirt to try to put lipstick on a pig and spin this disaster so that EasyDNS somehow looks responsible rather than culpable.